Public Charge

On October 10, 2018, the Department of Homeland Security (DHS) published a proposed rule related to public charge in the Federal Register. The proposed rule is not current law. We are many steps away from a final rule and its implementation. The comment period for the proposed rule ended December 10, 2018. Over 210,000 comments were submitted during the public comment period. DHS must now review and consider all submitted comments before the rule becomes final. The final rule will then be published in the Federal Register. The timing of the publication of a final rule is uncertain, and even after publication, legal challenges could delay implementation.

Here are a few important points regarding the public charge rule:

The proposed rule interprets a provision of the Immigration and Nationality Act (INA) pertaining to inadmissibility. The inadmissibility ground at issue says a person is inadmissible if they are likely to become a public charge. (INA § 212(a)(4)). This law only applies to individuals seeking admission into the United States or applying for adjustment of status. This is not a provision of the law that applies to all immigrants.

Public charge and this proposed rule do not apply in the naturalization process through which lawful permanent residents apply to become U.S. citizens.

Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support.

To decide this, immigration officers rely on multiple factors specified in the INA. They may also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.

Under existing policy, immigration officers also consider whether an immigrant applying for a green card or entry into the United States has used cash aid (such as TANF, also known as “welfare,” or SSI) or long-term institutionalized care. Immigrants who have are more likely to be denied admission on public charge grounds. However, use of publicly-funded health care, nutrition, and housing programs are not considered negative factors for purposes of public charge because our current policies recognize that these programs are vital to keeping our communities healthy and safe and individuals productive.

To learn more about the public charge ground of inadmissibility, please see our overview below.

Existing policy is still in effect. See this community resource for talking to immigrants about using important government programs and services.

Individuals seeking to enter the United States apply at consulates abroad. At the consulates, the officers use the Foreign Affairs Manual (FAM) as guidance on how to make decisions. Under FAM guidance, officers investigate further into the sponsor’s ability to uphold the affidavit of support. To learn more about this process see our Consular Processing Practice Alert on Public Charge and Affidavit of Support Issues.

What are the proposed changes?

While the test for whether someone is likely at any time to become a public charge will still be prospective, instead of assessing whether an applicant is likely to become primarily dependent on the government for support, the proposal defines a public charge as a person who merely uses an included government program. Past and current use of a broader array of benefits may be considered.

The proposal expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. The proposed regulation changes policies that have been in place for decades that exempt an individual’s use of health care, nutrition and housing programs from consideration. Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

The proposal also considers that all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.

Benefits received by family members of the immigrant would not be considered in the public charge determination. In addition, the proposal does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.

The proposal establishes factors that will be considered “heavily weighted negative factors” and “heavily weighted positive factors.” Use of specified government benefits are considered heavily weighted negative factors. The proposal establishes a confusing calculation standard to determine whether to count the use of a listed government benefit within the 36 months preceding the green card or visa application. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how an officer should decide a case that has both heavily weighted negative and positive factors.

The proposal would allow immigration officers to consider as a factor English proficiency (positive), or lack of English proficiency (negative). Past use of immigration fee waivers would also be a negative factor. The proposal would also require immigrants to attach a credit report along with a Declaration of Self-Sufficiency.

The proposed rule will not be retroactive if it becomes final. It will not punish past use of newly included programs, such as Medicaid, housing assistance and SNAP (Food Stamps) if they were used before the final rule goes into effect. Families will have a 60-day period after the final rule is published to disenroll from a program if they determine that it is necessary for their immigration case. Immigrants should consult with an immigration expert who understands public charge to learn whether the public charge rule even applies to them or their family. The proposal does not provide any reason why immigrants should disenroll from Medicaid, food stamps, or subsidized housing programs before the final rule goes into effect.

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